Since the passing of the Kenya Constitution 2010, the country has experienced numerous challenges in its implementation and meaningful interpretation. This has caused constitutional crisis, conflicts between the different arms of Government and disillusionment among citizens of the perceived gains in the Constitution.

It is against this backdrop that this conference has been organized to assist the legal community, legislators, judges, civil society, journalists, academics, members of the business community and civil servants to reflect on this subject matter.

The Conference will be officially opened by the Honourable Chief Justice of Kenya, Willy Mutunga on 9^th June at 8.30am and will involve presentations on interpretation by judges and academics from overseas and East Africa.

The conference will illuminate experiences from different jurisdictions in shaping the development of and interpretation of transformative constitutions. A transformative constitution is generally understood as one that seeks to make a break with the previous governance system. It aims not only to change the purposes and structures of the State, but also society. It is value laden, going beyond the State, with emphasis on social and sometimes economic change, stipulation of principles which guide the exercise of state power, requiring State organs, particularly the judiciary, to use the constitution as a framework for policies and acts for broader shaping of state and society. They require positive initiatives and legislation by the state, and in cases of failure, courts may instruct them to do so and perhaps elaborate what needs to be done.  There is considerable emphasis on the rule of law, defined not in any technical sense, but signifying a new kind of constitutionalism.

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Editors’ note:

The will be a chance for interviews with the presenters after their presentations.

For an interview or more information please contact Sofia Rajab on SRajab@khrc.or.ke or +254-20 2044545; +254-20 2106709.

The KHRC is an independent non-governmental organisation (NGO) founded in 1991 and registered in Kenya in 1994. Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. We envision human rights states and societies and outline our mission as to foster human rights, democratic values, human dignity and social justice.

The Mau Mau Memorial entails a monument structure and two statues of the Mau Mau and is to promote reconciliation and commemorate all those who suffered on all sides during the Emergency period. Click here for more images of the memorial.

The establishment of the memorial is a part of the settlement reached between the Mau Mau War Veterans Association (MMWVA) and the British Government announced in June 2013.The memorial constitutes a lasting expression of reconciliation.

In June 2013, the British Government made a historic statement of regret over the atrocities that that were perpetrated by the colonial government during Kenya’s Emergency period of 1952-1960. This was part of the out of court negotiations settlement wherein each of the 5,228 claimants identified as having suffered acts of torture was to be paid an ex-gratia payment of British Pounds 2,650 being Kshs. 340,000/-.  In addition, the settlement also included the construction of a memorial in Kenya in memory of Kenyan victims of the colonial era torture.

In 2003, the Kenya Human Rights Commission (KHRC)was approached by the MMWVA to support victims of the colonial era torture which took place during Kenya’s Emergency period of 1952-1960. The Mau Mau War Veterans Association opted to bring individual test cases of torture against the British Government on June 23rd 2009 with five elderly Kenyans, namely Ndiku Mutua, Wambugu Nyingi, Jane Muthoni Mara, Paulo Nzili and Susan Ciong’ombe Ngondi being the lead claimants in NDIKU MUTUA AND FOUR OTHERS – V- COMMONWEALTH OFFICE HQ09X02666.

Out of the 5228 ex-gratia payments, only 87 cases of deceased clients are pending as their various next of kin are following up on succession matters.

To execute the last part of the settlement; the Mau Mau Memorial Steering Committee held a MauMau monument design competition. We got at least five entries from interested designers. The Steering Committee comprises the KHRC, MMWVA, the British High Commission, the Ministry of Sports, Culture and Arts (through the National Museum) and the Nairobi County Governor’s office.

Experts from the Board of Registration of Architects and Quantity surveyors (BORAQS) offered technical expertise towards analysing the feasibility of all the entries in terms of cost and durability.

The winning bid has been submitted to the Nairobi County for approval before construction.

The Nairobi County have offered a construction site at the freedom corner and will further meet some costs towards construction of path ways leading to the monument.

The ground breaking ceremony will be held in June before the construction begins. The MauMau war Veterans will converge there to acknowledge the memorial.

The unveiling of the monument will be done in October during Mashujaa day

What was Kenya like in 1991? Kenneth Matiba, Charles Rubia and RailaOdinga were in prison, detained without trial. Several other leading Kenyans were in exile. It was only three years after Kanu, then the only legal political party, had held nominations for Parliament using the infamous queue voting system.

1. Five of the Kenyans in exile – Prof Makau Mutua, Mr Maina Kiai, Dr Willy Mutunga, Hon Kiraitu Murungi and Prof Peter Kareithi – formed the Kenya Human Rights Commission and registered it in Washington DC in 1991.
2. One of the founders was despatched to Kenya to operate from the offices of Kuria, Ringera and Murungi Advocates. The KHRC was later hosted by the Kituo cha Sheria before moving to South B Estate, and to its current location on Gitanga Road in Valley Arcade.
3. Between 1992 and 1997, the KHRC focused on monitoring, documenting and publicizing human rights violations. It applied a direct attack on political despotism. Through direct action protests and support to victims and survivors of violations, the organisation established itself as an advocate for civil and political rights in Kenya, by linking human rights struggles with the need for reforms in political leadership and institutions.
4. From 1998 to 2003, KHRC expanded its advocacy strategy to include social and economic rights in order to attack economic despotism. We made a radical shift in approach that led us to begin developing capabilities of those affected by human rights problems to advocate for their rights. It invested in community based Human Rights Education (HRE) and shifted its advocacy approach from ‘reactive, one-off’ activism to more nuanced processes, participation of those affected by specific human rights violations and targeted reforms at policy and legislative levels.
5. It developed its first Strategic Plan for the period 1999-2003 whose thrust was to develop competencies at community level for citizens to identify and deal with human rights violations, without depending on the previous interventionist orientation.
6. The 2003-2007 Strategic Plan focused on strategies and actions aimed at enhancing community-driven human rights advocacy by building the capacities of citizens to deal with their immediate human rights concerns as well as engage in strategic actions to transform structures responsible for human rights violations. During this phase, it focused on rights related to trade, business, investment, natural resources, labour and sexual and reproductive health.
7. In 2008-2012, KHRC expanded the impact of its work to play an active role in procuring citizen-led reforms towards a more just, democratic and human rights-respecting Kenyan society. With the Constitution of Kenya, 2010,KHRC sees a normative framework for the kind of society it wishes to see, but recognised that it is facing a serious threat of being sabotaged because of the ascension to power of those opposed to it.
8. A majority of the first commissioners at the Kenya National Commission on Human Rights were from KHRC. The Truth, Justice and Reconciliation Commission (TJRC), established in the wake of the post-election violence of 2008,was a brainchild of KHRC. Chief Justice Willy Mutunga is a founder and former director of KHRC. The UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, Mr Maina Kiai, is the KHRC founder director and now member of the board; while the current UN Special Rapporteur on Xenophobia, Dr Mutuma Ruteere, also worked at the KHRC.

This latest strategic plan comes at a time of transition in Kenya.  The promulgation of a new Constitution of Kenya in August 2010 ushered in a devolved governance structure, a bicameral parliament, the establishment of several constitutional commissions and institutional changes.

There is also a new political order following the March 2013 general election, the first elections held under the new constitution. The elections resulted in the ascension to power of Uhuru Kenyatta and William Ruto, both of whom are facing charges of crimes against humanity at the International Criminal Court in The Hague. New electoral seats were also created by the constitution: governors and County Representatives (for County Governments), women’s representatives in the National Assembly and senators in the Senate.

The birth of a new constitution, Constitution of Kenya (2010) one of the hallmarks of which is a strong Bill of Rights, is but one of the many democratic gains that the KHRC has contributed to in the last two decades.

KHRC has triumphed in two significant historical injustices cases:

• • KHRC identified Nyayo House torture victims, created a network for them and facilitated litigation leading to their compensation and obtained a court order to preserve Nyayo House chambers as part of national memory.
  • And In June, 2013, through its work in partnership with the MAU MAU War Veterans’ Association, the British Government made a statement of regret for the torture suffered during the independence struggle in Kenya; entered into a settlement for over 5,000 victims of torture; and setting up a memorial in honour of victims of torture.

Also in 2013 the KHRC won a case requiring the Kenyan Government to consult with citizens and small scale farmers’ organisations in negotiating economic partnership agreements (EPAs) with the EU and other stake holders.

Land and Human Rights Advocacy Organizations’ Open Letter to the Government of Kenya and Other State Actors on Land, Environment and Natural Resources

His Excellency Honorable Uhuru Kenyatta,

The President of Kenya;

Honorable Prof Judy Wakhungu,

Ministry of Environment, Water and Natural Resources;

Honorable Githu Muigai,

The Attorney General;

Honorable Amina Abdalla,

Chair, Environment and Natural Resources Committee

Honorable Alex Mwiru,

Chair, Departmental Lands Committee.

THE TRUTH ABOUT EMBOBUT FOREST EVICTIONS AND A WAY FORWARD

We Land and Human Rights Advocacy Organizations would like to state that the recent evictions at the Embobut Forest are not only a grave violation of the Kenyan Constitution but also defiance of international law on human rights and an ineffective approach to biodiversity conservation.

Don’t be misled

We are told that “squatters” have been moved out of the Embobut Forest, and that this means one of Kenya’s water towers has been salvaged. What official sources, and many media accounts, fail to point out is that some of those being evicted are being chased out of their ancestral lands.

Although their plight found space in the Constitution because these communities have suffered long enough, regrettably no one is telling Kenyans that the best way to protect that water tower would be to leave the indigenous inhabitants of Embobut in their forest home, the place that they have protected for centuries; and they can do so even better if given the chance. This means making it legal for them to continue living on their ancestral lands that are now within a Reserve, on condition they conserve the forest, for all of us Kenyans.

1.  Who lives in the Embobut Forest?

• The Sengwer

The Sengwer is an indigenous and marginalised ethnic group of hunter-gatherers. They have lived in the Cherangany Hills for centuries, and Embobut forest is their ancestral and communal land.

• "Resettled" Landslide victims

These people are there because of the landslides in 1961 and 2010 in the Cherangany Hills, which resulted in loss of life and displacement of people. They have been living in the forest while awaiting resettlement in a proposed second phase.

•  Other "in-comers"

Other people have moved in, viewing the forest as “free land”, clearing the forest to create land for farming and also cut down the trees for commercial purposes.

2.  What are the Real Issues  

• Conservation Concerns

The Government claims it is evicting people from the Embobut Forest in order to protect the forest’s biodiversity. But the best way to protect the forest is to allow those who have been its guardians for centuries to continue to do so. And this approach is recognised internationally as the most effective.

• Human Rights Issues

Gross violations of human rights have been committed against the forest evictees by the Government of Kenya. We have seen the films and photographs of the homes Kenya Forest Service has burnt, forcing thousands of Sengwer families to flee. We can all imagine how traumatising it can be to have homes and belongings, school uniforms and beddings burnt, schooling disrupted, food sources destroyed, and communities broken. Specifically the rights violated include:

• The rights to food and to housing, and almost certainly to health: these are protected by Article 43 of the Constitution, and are violated by removing people from the forest on which they have relied for their daily existence 
• The rights of the children: the right to education, and the right to shelter, and to freedom from violence have all been violated 
• The right to practice culture: especially for the Sengwer, the forest is their life as well as their livelihood, it contains their shrines, and it is integral to their community life, and they have been deprived of this 
• Rights to ancestral land: Article 63 (d) of the Kenyan Constitution recognizes the rights of communities to own ancestral lands traditionally occupied by hunter-gatherers. 
• Right to property: destruction of houses and their contents obviously violate this right (Article 40) 
• Right to personal security: everyone has the right to be free from violence from any source (Article 29), clearly violated by the manner of the evictions 
• Right to dignity: Dignity is at the root of rights, and it has not been respected (Article 28) 
• Right not to be evicted in violation of international standards: the Kenyan courts have recognised this right, and even if there is good reason to evict anyone, certain standards must be respected – and they have been violated.
• Compensation

The much hyped compensation of Kshs 400,000 to each family in return for them to vacate the forest is misleading. Many people did not get this, many did not understand or agree to the supposed arrangement. In the spirit of transparency, the Government should publish the list of all the beneficiaries so.

For the Sengwer, compensation and resettlement is not the issue at all; they should be left live in and protect their ancestral home. They are willing to be bound to use those home areas as conservators of the resources that are so precious to their livelihoods and to abide by conditions laid down by KFS.

3.  Defiance of the rule of law

• The forceful evictions carried out by the police in the Embobut Forest are not only a violation of constitutionally guaranteed rights but are also a direct violation of stay orders issues by Eldoret High Court.
• Disregard for constitutional values violates the rule of law. And turning a blind eye to a court order is equally a violation. If Kenya Forestry Services, police and officials can decide that they can disregard the law, including an order of the court, the law and the Constitution, then the hopes of Kenyans that rest on this foundation become meaningless.
• Dispossession of the Sengwer people and indeed of the many other indigenous forest communities in Kenya - including the Ogiek, Yaaku, Aweer and Sanye – is a historical land injustice that started with the colonial administration, and has been perpetuated by subsequent independent governments. It is ironic that while the constitutionally mandated National Land Commission prepares its programme to deal with existing historical land injustices, the Government is perpetrating fresh injustices in dispossessing people of their ancestral community land.

4.  Why the underlying policy is mis-guided

There are best practices all over the world that the Government could replicate. Over 50 countries have been faced with the same issue: from the Amazonian to the Congo Basins, from the Indian sub-continent to South East Asia. More and more states are finding the way forward – not by abandoning forest conservation needs in favour of forest dwelling communities’ land rights, or vice versa, but by integrating the two in a practical approach that allows forest communities to stay in their forest, on condition that they take on full responsibility for protecting and conserving the forest resources. They cannot dispose of those lands, and if they fail to sustain their forests they lose those rights. Conservation science now tells us that when forest dwelling communities have secure rights to their lands, they are six times more effective than state agencies at protecting their forests.

Even in Kenya the Ogiek of Chepkitale, Mount Elgon are showing the Kenya Forest Service and Kenya Wildlife Services that, given the chance, they can manage those threatened resources themselves with support from these services. They have their own community by-laws to ensure protection and sustainable use of these areas, which they regard as their (ancient) community lands; and the Sengwer had begun the same process before the evictions took place.

5.   Mapping the Future

The way ahead is not mysterious. It involves respect for rights, and effective forest conservation. The laws, the mechanisms and the knowledge are all there.

• The National Land Commission is the body, created by the Constitution that should take charge of this situation, and work, with others towards a sustainable solution for Embobut and other forests.
• Technical assistance should be offered to the 8 indigenous forest dwelling communities whose lands have been reclassified into 17 state-owned Protected Areas who are working to find a way out of the conventional conservation-rights impasse.
• Enactment of the Community Land Bill would cure some of the problems. There is real concern that powerful players may be seeking to evict these forest dwelling communities from their ancestral lands before this Bill becomes law.
• And it is the obligation of the National Land Commission to ensure that any evictions that are necessary (and the major point made here is that eviction of the Sengwer is not only unnecessary but will work against forest protection), must be done in accordance with the Constitution, and indeed s. 155 of the Land Act.

Finally: We believe that the government can win. And the people can win. Even if the new government means well, it they will do well in changing times to listen closely to their people, in this case to those who are being affected and those who have solutions well worth listening to. It is clear that recognising ancestral communities’ rights to their ancestral forest lands can give such communities the security to be able to protect their forests from encroachment by those who do not want to protect the forest.

Signed:

RUNAWAY INSECURITY IN THE COUNTRY: WHERE DOES THE BUCK STOP?

PRESS STATEMENT DECEMBER 20, 2013

We, the Human Rights Campaigners gathered here today, note with concern the cases of runaway insecurity in the country and the lackluster approach adopted by the country’s security organs in handling the situation. Article 238 of the Supreme Law obligates the Inspector General of Police and other relevant national organs to promote and guarantee national security of Kenyans subject to the Constitution, in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms.

When Kenyans voted for a new constitutional order in August 2010, they did so with the hope that they were bequeathing unto themselves, a new governance contract anchored on a firm and solid foundation that would ensure that all Kenyans are in a position, and to the fullest extent possible, to enjoy all the socio-economic and political rights espoused in the COK 2010.  In terms of security, the COK 2010 is clear on the constitutional security guarantees for Kenyans, and indeed everybody else within our jurisdiction. At Article 29, the Constitution says, and I quote: “Every person has the right to freedom and security of the person, which includes the right not to be: c) subjected to any form of violence form either public or private sources”. Similarly, at Article 26, the Constitution is crystal clear that, and I quote, “Every person has the right to life”. Our Constitution also provides a framework of the key institutions and actors who have been given the constitutional mandate of ensuring that we are all safe and secure. These are clearly spelt out in Chapter fourteen.

However, despite the foregoing, we are alarmed at the recent levels of runaway insecurity experienced in the country. From the wanton killings of innocent Kenyans by an assortment of marauding gangsto the loss of lives in internecine inter-ethnic and intra-ethnic conflicts—sponsored by politicians and ethnic warlords—spreading from Moyale to Isiolo, Pokot, Turkana, Baragoi, and Bungoma to name just but a few places; to the numerous occurrences of car-jackings and robberies in Kenya’s urban centres; to the continued commercialization of cattle-rustling with its dire consequences amongst the pastoralist communities and their neighbours; to the illegal actions of extra-judicial executions carried out by the police under the ‘shoot-to-kill’ orders in the name of fighting crime and insecurity; to the now common incidents of terrorist-related killings with the worst being the West-Gate Mall siege; to the acts of sexual and gender-based violence meted out, mostly on women and young girls, by repugnant sexual predators; it looks like, unless urgent and concerted measures are taken by both state and non-state actors to stem the tide of rising insecurity in the country, we are fast sliding down a dangerous precipice of utter lawlessness.  The summary that has been presented to you in the power-point succinctly captures the overall state of insecurity in our country.

We want to reiterate the fact that the ongoing state of insecurity in the country is simply untenable. And, on that note, we call upon President Kenyatta and the Senior Security officials in the government to ensure that Kenyans are safe and secure in line with the COK 2010. We think it is in order to echo Mr. Kenyatta’s commitment and pledge to Kenyans during his inauguration speech where he stated that his government will strive for a safe and secure country, and we quote his speech of 9th April, 2013 which read in part, “Criminals, cattle rustlers, drug barons and agents of terror who disrupt the peace of our society will be met with the full force of the law and the strength of Kenya’s Security Forces. On this matter, we are resolute to our men and women in uniform, I say, this nation is indebted to you. You continue to lay down your lives in service, protecting Kenyans from threats both external and internal. My government will continue to work with you and do all that is in its power to support you as you continue in your noble duty…”

The President must now start walking the talk. The buck stops with the President when it comes to the security and safety of our country. We want our country’s safety and security back! We view the ongoing lapses in security as a manifestation of bad governance—NOT AS A CRISIS OF GOVERNANCE—that must not be allowed to continue. We also hope that the on-going police vetting exercise will help us establish a professional police service that will ensure the safety and security of all Kenyans in line with the law. We therefore expect that the exercise will not be a mere smokescreen but rather a national exercise aimed at giving us a first class police service.   As Kenyans get ready to embark on the celebrations to mark this festive season, we hope that the government will do all it can within its capacity to ensure their safety and security.

Signed:

As it is now common knowledge, the KHRC and the MMWVA working with Leigh Day and Co  Advocates achieved an important victory when, on October 5, 2012, the Royal Courts of Justice in London ruled that the case against the British Government for the torture suffered under the colonial government during the state of emergency period in Kenya between 1952 and 1959 could go to full trial.

This journey to justice has been long and arduous. For over ten years (since 2003), the KHRC and the MMWVA remained focused and relentless in their fight for justice for the Kenyan victims of colonial torture as well as for the rightful recognition of our liberation heroes within Kenya’s body politic.

It is that focus and relentless commitment from the KHRC and the MMWVA that  yielded the victory—an out of court settlement with the British Government; an apology from the British Government; and the funding of a memorial from the British Government.

The British Government challenged the case on two grounds- limitation and succession. They had argued that the case had been overtaken by time being over 50 years old and also that the Government of Kenya that took over the from the colonial government took over all its liabilities including such cases. However, they lost the case on both grounds when the court ruled that the case should go to full trial and they later agreed to a settlement with the MMWVA which constitutes the following:

1. A statement of regret that was  made by William Hague, the British Foreign Secretary, on the floor of the House of Commons on Thursday 6^th June, 2013;
2. An out of court settlement which will be in the form of payments to 5,228 individuals who are living victims of torture during the colonial era whose torture claims we have been able to authenticate; and
3. A monument to victims of colonial era torture.

Today, together with the MMWVA , the KHRC and the British High Commission launch the design competition for the Mau Mau Memorial. Find the details here: http://www.khrc.or.ke/get-involved/consultancies/185-mau-mau-memorial-design-competition-brief.html

THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2013: WHY IT IS A BAD LAW FOR THE COUNTRY AND WHY KENYA’S CIVIL SOCIETY ORGANIZATIONS WILL RESIST IT

Members of the CSO Reference Group, a network of civil society organisations (CSOs) working in a wide range of arenas for the public benefit across the country, are deeply disappointed with the recent publication, by the Attorney-General of the Republic of Kenya, on October 30, 2013, of the Statute Law (Miscellaneous Amendments) Bill, 2013 and particularly of the proposed amendments to the Public Benefit Organisations (PBO) Act, 2013. The Bill seeks, amongst other things, to amend parts of the Act (No. 18 of 2013), popularly known as the PBO Act, a progressive legislation that the 10^th Parliament passed before the March 2013 General Elections.

CSOs have played a critical role in promoting and delivering socio-economic development, promoting social justice, good governance and democratic development, rights of participation, fundamental rights and freedoms and a wide variety of other outcomes for the benefit of Kenyans. The Statute Law (Miscellaneous Amendments) Bill proposes among other things to cap external funding of PBOs to not more than fifteen percent of the total funding. If passed and implemented, the Bill will have serious negative impacts on Kenya’s social and economic development. It will not only constrain the civil society’s contribution to national development but also make the attainment of socio-economic rights that much more difficult. If one looks at the fact that civil society contributes over KSh 100 billion to the economy, employs more people than the manufacturing sector per capita, benefits millions of Kenyans throughout the country and especially the vulnerable and marginalized amongst others, it is difficult to see how the Jubilee government will achieve many of its campaign promises, let alone Vision 2030.

Since September 2009, the CSO Reference Group has mobilized, informed and consulted widely on the reform of the NGO Act and provided recommendations on the development of the new PBO Act. The Reference Group sincerely appreciated the spirit of cooperation afforded by the government, Parliamentarians and other stakeholders in the formulation and passing of the PBO Bill into law.

The PBO Bill was the product of a foresighted Member of Parliament, the Hon. Sophia Abdi Noor, who consulted representatives of the country’s development sector, key government departments like the Non-governmental Organizations Coordination Board, and led the development of a new law that was not only in conformity with the Constitution of Kenya, 2010 but was also reflective of a shift in government-civil society relations.

The Statute Law (Miscellaneous Amendments) Bill’s proposed amendments to the PBO Act are ill advised, unconstitutional in their overall scope and content, and brazenly undermine the spirit of the PBO Act. Consequently, they should be re-drafted before the Bill is tabled in the National Assembly. With the publication of the amendments, the overarching objectives of the Act are under jeopardy. Key among these have been:

1. The re-birth of a sector guided by national values and principles, and upholding high standards of accountability and transparency, in the pursuit of the public benefit;
2. The meaningful protection of the freedoms of association, expression and assembly, which would enable individuals and groups to freely pursue their goals, in collaboration with others for the benefit of Kenyans;
3. The re-structuring of the legal and institutional framework for self-regulation, in order to ensure that the sector governs itself more effectively and engenders public trust; and
4. The facilitation of principled and constructive collaboration between the Government and Civil Society to address the numerous complex challenges facing society today.

The overall thrust, content and import of the proposed amendments is to place the country’s civil society under even tighter control of the state than was the case for CSOs under the infamous Non-governmental Organizations Co-ordination Act (No. 19 of 1990), which the PBO Act repealed. That this is happening even before the Cabinet Secretary responsible for Planning and National Development gives the PBO Act a commencement date, and while the necessary regulations had been drafted and were under discussion with representatives of the civil society, is clearly a set-back to an otherwise positive policy process.

It is common knowledge that the latest set of amendments are a narrow-minded attempt at restricting the activities of a few organizations that have rubbed the new administration the wrong way, and are therefore excessively disproportionate in their overall scope. Granted, the relationship between civil society and the state will not always be smooth, especially because of the former’s oversight and demand-based work. However, there is no reason why there should not be a structured, functional relationship based on shared development goals and other principles. To design legislation that aims to punish a few, whatever the state’s impression of the utility of their work, and then end up debilitating an entire sector is something the state would be well-advised to avoid.

Because of the foregoing, it should be abundantly clear that civil society will resist these latter-day attempts to stifle the sector and shrink Kenya’s hard-won democratic space vigorously. Kenyan civil society is aware of the risks of working in an illiberal environment, where the state determines what can or cannot be done, and the fact that the Kenyan state has borrowed from regional and international worst practice with respect to the latest amendments. It is also aware that this latest move is part of a broader scheme to generally restrict the exercise of rights, including the freedoms of expression and association. It will therefore mobilize effectively to resist these attempts and strive for a meaningful development partnership with the state under-pinned by respect for rights and freedoms rather than subservience to the state. As long as CSOs do not break the law, they should be allowed to operate freely in the multiparty democratic society that the Constitution proclaims Kenya to be.

THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2013: WHY IT IS A BAD LAW FOR THE COUNTRY AND WHY KENYA’S CIVIL SOCIETY ORGANIZATIONS WILL RESIST IT

On October 30, 2013 the Attorney-General of the Republic of Kenya published the Statute Law (Miscellaneous Amendments) Bill, 2013. The Bill seeks, amongst others, to amend parts of the Public Benefit Organizations Act (No. 18 of 2013), popularly known as the PBO Act, a progressive legislation that the 10^th Parliament passed before the March 2013 General Elections. The overall thrust, content and import of the proposed amendments is to place the country’s civil society under even tighter control of the state than was the case for civil society organizations (CSOs) under the infamous Non-governmental Organizations Co-ordination Act (No. 19 of 1990), which the PBO Act repealed. That this is happening even before the Cabinet Secretary responsible for planning and national development gives the PBO Act a commencement date, and while the necessary regulations had been drafted and were under discussion with representatives of the civil society, is clearly a set-back to an otherwise positive policy process. From the outset, the following four issues are core to the country’s PBOs in relation to the proposed legislation:

1. The Statute Law (Miscellaneous Amendments) Bill’s proposed amendments to the PBO Act are ill-advised, unconstitutional in their overall scope and content, and brazenly undermine the spirit of the PBO Act. Consequently, they should be re-drafted before the Bill is tabled in the National Assembly. The PBO Bill was the product of a foresighted Member of Parliament, the Hon. Sophia Abdi Noor, who consulted representatives of the country’s development sector, key government departments like the Non-governmental Organizations Coordination Board, and led the development of a new law that was not only in conformity with the Constitution of Kenya, 2010 but was also reflective of a shift in government-civil society relations. The proposed amendments take the country back to the '90s era when the state treated CSOs as security threats that had to be muzzled along with other alternative voices, in a very restricted democratic space.

INSPECTOR GENERAL AND OTHER SECURITY ORGANS: STOP ARBITRARY DIRECTIVES AND EMBRACE ACCOUNTABLE POLICING WITHIN THE NEW CONSTITUTIONAL ORDER 

The Kenya Human Rights Commission wishes to strongly condemn the IGPs’ illegal directive of arrest of some media personnel for executing their societal duty of sharing information to the public. It is our submission that the media acted within its constitutional rights which are entrenched under Articles 33, 34 and 35 thus providing the requisite safeguards on the freedom of expression, freedom of the media and right to information, respectively among others.

Moreover, we wish to bring to your attention that Article 238 of the Supreme Law obligates you and other relevant national organs to promote and guarantee national security of Kenya subject to the Constitution, in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. Of course

In addition to this, we affirm that Article 10 on the National Values and Principles of Governance expects you to foster the same tenets plus good governance, integrity, transparency and accountability in making and implementing public policy decisions-including all the security operations.

It is on this basis that the Commission takes great exception in the manner in which the IGP has in the recent days issued arbitrary directives and indecorous warnings that are tantamount to stifling the said hard-earned civil and political rights. It is our considered opinion that this is part of the new and immoral schemes by your office, other state apparatus and merchants of impunity to muzzle our democratic space; undermine social accountability (over the many bungled security operations) and entrench political repression in the society.

While we appreciate the great efforts and sacrifice by our security apparatus to protect the country against internal and external threats, we wish to remind the IG and other members of the National Security Council that that as a state officer, he took an oath to obey, preserve, protect and defend the Constitution of Kenya in the management of the affairs of the state.

In the same vein, the KHRC greatly appreciates and recognizes the role played by other stakeholders to deal with the various insecurity crises and we particularly commend members of the fourth estate for their immense contribution towards enhancing the right to access to information by giving factual and timely information regarding many issues affecting Kenyans, with the most recent exposure of the Kenya state security agencies response to the Westgate attacks and other security issues and operations in the country and beyond.  We further recall that the president of the republic of Kenya once quoted as saying that “free media is the heart of democracy”

We wish to remind the IGP that it is through this great work by the media that Kenyans have been constantly informed about the escalating incidences of insecurity in the country particularly in the past ten months where over 200 innocent civilian and as well as dedicated security personnel, have lost their lives through preventable acts of criminality in situations of terrorist attacks as experienced in Garissa, Mandera and Nairobi (Westgate attack), organised illegal gang attacks in Bungoma and Busia, cattle rustling in Baragoi, Kuria, Pokot and Baringo counties, clan clashes in Moyale and Mandera and robberies. These incidences are reminiscent of the insecurity incidences we experienced last year most notably in Baragoi and Tana River. His incidences have further resulted in physical and psychological trauma of hundreds, thousands displaced and property worth millions of shillings destroyed or stolen.

These events evidently expose the existence of fundamental governance and structural deficiencies within the state security architecture which must be given the due attention it deserves and conclusively addressed.

The KHRC therefore calls upon:

1. The IG to unequivocally retract and apologize to the media and the country at large for the arbitrary and unconstitutional directives.
2. The state security apparatus to have a candid reflection on the gains and pitfalls of the Westgate and other security operations and formulate strategies that responds to both the roots causes and manifestations of insecurity in Kenya and within the established Constitutional principles and threshold.
3. The IGP to explore and exploit laid down procedures, if aggrieved by the conduct of some of the media personalities, to engage with the Media Council of Kenya to address his concerns.   The IGP should note that Kenyans do not want to see a return to the dark repressive days.
4. The IGP to stop acting as the mouthpiece of the KDF and instead reflect upon reforming the NPS to strengthen its operations to prevent and effectively respond to incidences of internal insecurity. The IGP should focus on policing within the COK framework and overall goal of making Kenya a safe place for all citizens and non-citizens in Kenya.
5. The President of the republic of Kenya together with the National Security Council, the leadership of the National security organs, other bodies and personalities charged with the security of this nation to critically examine the state security architecture and make hard and strategic decision for the sake the safety of Kenyans.

The KHRC wishes to remind the President of Kenya of his pledge to Kenya in his inaugural speech on 9^th April, 2013 which reads in part “…..Criminals, cattle rustlers, drug barons and agents of terror who disrupt the peace of our society will be met with the full force of the law and the strength of Kenya’s Security Forces. On this matter, we are resolute to our men and women in uniform, I say, this nation is indebted to you. You continue to lay down your lives in service, protecting Kenyans from threats both external and internal. My government will continue to work with you and do all that is in its power to support you as you continue in your noble duty…”

We cannot underscore enough the fact that the government holds the primary obligation of ensuring safety and security of all citizens and others living in country. This responsibility must however be executed within the confines of the rule of law and protection and promotion of all rights of all people and groups. This is a key element throughout the COK and emphasized further in article 238 of the COK.

The KHRC finally calls on all the citizens and non-citizens of Kenya to uphold the sanctity and dignity of human life and as such take responsibility of their individual security as well as promote the security of fellow human beings.

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The KHRC is an independent non-governmental organisation (NGO) founded in 1991 and registered in Kenya in 1994. Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya. We envision a human rights state and society predicated on our mission of fostering human rights, democratic values, human dignity and social justice.

Davis Malombe,

Deputy Executive Director